Supreme Court: Denies relief for Gitmo prisoner

This guy was turned over to the US in Pakistan for a bounty. The US government admits he is no threat to the United States, but despite that fact he has been held at Gitmo for five years. Now, to add even more injury to inury, he is being deported to a country that he had already fled, and be granted asylum from in the UK.

Where is the justice for this man? Is simply being a muslim a crime?

Shouldn't one of the following senators take him into their homes: Schumer, Durbin, Obama - he could be the kids nanny, Kennedy, Kerry....

Terry:

You've spun so complete a web that you're completely disoriented.

You hero put this guy in a "detention" facility for almost six years despite the fact that's evidently guilty of nothing. Thus, if Schumer, et al. took him into their homes, they would not be taking a "terrorist" (as your Wingbot talking lie would have it) but instead an innocent person.

Some would call Belbacha's situation tragic. Since your bigoted mind puts all "dark" people in the same category, though, you have no mercy for a guy who's apparently innocent.

Thanks for providing us a window into the wretched world between your ears. Go give the dog a good kick for me, 'kay?

Since when did "no significant threat" turn into not guilty?
Not every suspect was taken to Gitmo. Others have been released only to have been killed or recaptured in battle.
Where is the photo that our compassionate poster saw?

So what has Ahmed Belbacha been charged, tried, & convicted for that caused him to be imprisoned by the US after all these years?

blink,

Then one of your senators should take him in: nanny for Obama, houseboy for Schumer/Durbin at their DC pad, bartender for Teddy... the possibilities are limitless.

blink,

don't kick dogs, gotta cat?

Poor little Terry, so scared, so cowardly.

Afraid the big bad Muslim will come get him in his sleep.

Tony:

Do you believe Islamic terrorists pose a threat to the United States? Why or why not?

JB-

Yes I do believe that there are Islamic terrorists that are a threat to the US.

However-

Ahmed Belbacha is NOT an islamic terrorist by the government's own admission.

Terrorists are a tiny majority of the people who hold the islamic faith in the world.

Therefore the fear of all people of that faith, and most especially the fear of Mr. Belbacha that Terry manifests, is baseless.

Tony,

Never did answer the question - what is your contribution to society and this economy?

Just finding the gitmo detainee a good home. Don't you think living with a Democratic senator is a good home? Not as good as your mom and dad's house, but a good home none the less.

Are you worried the big bad capitalist is going to get you?

RomanB:

He's not charged with a crime. But crime suspects doesn't exhaust the category of people who can be held in custody.

He was/is detained as an enemy combatant - which is newspeak for P.O.W. You don't try enemy combatants, and you don't release them either. You hold them for the "duration" of the war unless you choose to release them sooner. If this is a "war" then the duration could be for some time.

I'm glad I could help you and tony out on this.

John W.-
He was not picked up on a battle field of any sort. He was turned in for a bounty in a country with which we are at peace.

How does that make him anymore an "enemy combatant" than you are?

Oh that's right, he's of the Islamic faith.

Tony:

You just shot at the messenger. Don't do that.

It is a fact, whether you like it or not, that he was detained as an enemy combatant. He may well have been turned in for that reason.

As far as either of us may know, he was ratted out by someone in Pakistan for being a member in the Al Qaeda or Taliban infrastructure. If it was determined that he was such a person (and that is admittedly a big if), then it would probably suffice to qualify him as an enemy combatant.

You don't have to be picked up on a battle field to qualify as an enemy combatant as long as you are in the theater of war. Not all fighters stay on the field of battle, but they normally stick around in the vicinity. So, if this guy was in Pakistan, and we have good reason to believe OBL is in Pakistan, then I would suspect his affiliation with Al Qaeda would be close enough to make him fair game. I suppose, at least, the administration thinks so.

Oh, and contrary to your suggestion, we are not at peace with everyone in Pakistan. It’s naive to think so.

I’m glad I could help you out again.

Senator Durbin, who called his American military guards Nazis, should be the first one to volunteer to take this guy back to Algeria. Yeah, fat chance! All hat and no cattle as they say in the West.

And as far as we know the man was completely utterly innocent John W.
The facts we know incline to show that Mr. Belbacha was not a terrorist. HJe had passed security clearnaces in Great Britain. He had been granted asylum in Great Britain. He was cleared by the tribual the Pentagon itself empowered to determine these things. But apparently the possibility of guilt is enough for you, even though the ONLY authority that has been allowed to review the matter has chosen to release him as no threat at all.

We used to have a quaint little concept in this country. You used to be innocent until proven guilty. Apparently that was a casualty in the "Global war on Terror." As a lawyer I wouild have thought you would mourn that. But apparently you don't.

To those of you who think you know all the answers about who we are holding in Gitmo, please listen to this episode of This American Life. Some of you it may reach, others of you I'm not so hopeful.

http://www.thislife.org/Radio_Episode.aspx?episode=331

Tony:

You are entirely out in left field, and you got there starting off on the wrong foot.

Let me make this plain: There is no such thing as a presumption of innocence when it comes to P.O.W.s. There never has been one, and there probably never will.

Why? Because the presumption of innocence only applies in criminal proceedings. At the sake of being obnoxious, I’ll repeat myself: The presumption of innocence only applies in criminal proceedings. It doesn’t apply in civil proceedings of any kind, including many proceedings that might result in significant deprivations of liberty – like civil commitment proceedings.

In contrast, a person is not held as a P.O.W. pending criminal proceedings, or even as the result of criminal proceedings. A P.O.W. is not incarcerated for the purpose of being punished, or to await trial and punishment. A P.O.W. is held in custody for one reason: to keep him or her from being a useful asset to the enemy – period. You don’t even have to be a warrior to end up as a P.O.W. Being a mechanic or clerk typist will do – as long as you are unfortunate enough to be caught wearing the wrong uniform or with enough indicia of having assisted the enemy.

In short, there is no presumption of innocence because there is no crime associated with being an enemy combatant. And that is, again, because the detention is “preventive” rather than for the purpose of visiting retribution upon the detainee.

And that is why this guy was held. There was some evidence out there in the field that he was affiliated with the enemy. There was some evidence out there, depending on which newspaper you read, that he left England for Pakistan to study his religion (which is fine by me). He then crossed over into Afghanistan where he joined up with the Taliban and allegedly underwent some training in one of their camps. Then, after the Americans invaded Afghanistan, he and some of his Taliban buddies skedaddled back across the border to Pakistan. He was apprehended after he left Afghanistan with others associated with our enemies. After that, he was detained until we determined that he no longer posed a threat to our military operations.

Two more quick points are in order. First, I am in no position to determine whatever facts support the determination that he had anything to do with the Taliban or any terrorist organization. I can’t know those any better than anyone else. But, I do know that there is also a presumption of regularity and correctness that attaches to governmental action. As applied here, that means we have to assume, until the contrary is shown, that the government properly determined the man was an enemy combatant. Unless you have concrete facts to demonstrate that he was not an enemy combatant, beyond the various flavors of hearsay to be found in different newspapers and from different organizations, it is pointless to even talk about it.

Two, your comments regarding his pre-Pakistan behavior simply don’t count.
His behavior in Great Britain doesn't count because that was before he went to Pakistan and Afghanistan where he joined up with a terrorist organization. The determination that he is “harmless” now doesn’t change this. The latter determination was made based upon current conditions, and not necessarily because of his behavior in Great Britain.

So, no I am not going to be troubled by the loss of “quaint ideas” like the presumption of innocence. That presumption is safe at home: in the the Anglo-American criminal justice system.

The real kicker about this case isn’t the fact that he was supposedly incarcerated for being “innocent” (which, as explained, has no application to this scenario). The real kicker is that this man wants to stay in Gitmo in order to avoid death and torture at home!!!! It’s a little tough for the left wing, anti-war crowd to keep up the “torture” rhetoric against the administration’s handling of Gitmo, when this guy wants to stay there.

I love the wannabe trial lawyers on this post and their sanctimonius rhetoric about being innocent until proven guilty. This a right for Americans only not jihadists terrorists, who by the way from a religious point of view hate your liberal lifestyles with abortion on demand and kinky sex and pornography. The President is right the Club Gitmo jihadists live quite well we don't torture them. How about the Islamic radicals who kidnapped defenseless South Korean Christians if they die at jihadists hands we're talking martyrs.Feel sorry for our American soldiers who die at their hands or are blown up by their IED's.It's a Dem Dickie Durbin who called them Soviets in their gulag and Pol Pot. Jerry White, Springfield, IL

John W.-

First off, much of your legal justification is built on the wrong base.

The prisoners at Gitmo are not POWs. POWs get protections through the Geneva convention, and oversight through the International Red Cross. There is no legal basis to discuss the treatment of these prisoners thanks to your heros in the Bush Administration who have placed the detainees in a legal limbo outside both US and international law. I'm sure any number of regimes who in the future may have conflicts with the US have noted that precedent, and we will see the practice returned upon us with a vengence.

"First, I am in no position to determine whatever facts support the determination that he had anything to do with the Taliban or any terrorist organization."

"His behavior in Great Britain doesn't count because that was before he went to Pakistan and Afghanistan where he joined up with a terrorist organization."

Well, if you're not in a position to make that determination, then don't make it.

"As applied here, that means we have to assume, until the contrary is shown, that the government properly determined the man was an enemy combatant."

Well, when the government blocks all means to allow it to be shown otherwise, we have left the world of the rule of law and are strictly in the realm of the application of raw power. So, lets not discuss legality, let's talk about justice.

Holding someone for 5 years for something that apparently did not do, and then return them to a country they fled to avoid persecution is an unjust act. Legal or illegal, POW or criminal, denying someone's liberty is a most serious act, and deserves a high bar of consideration no matter the circumstance.

Locking a guy up for five years simply because someone offered him up for a bounty doesn't meet that bar to me. I think if you let go of your fear and anger for just a moment and look at Mr. Belbacha as a human being, rather than as the "enemy" you may see that as well.

"So, no I am not going to be troubled by the loss of “quaint ideas” like the presumption of innocence. That presumption is safe at home: in the the Anglo-American criminal justice system."

Tell that to Jose Padilla, a US citizen denied his Habeus Corpus rights.

"This a right for Americans only not jihadists terrorists, who by the way from a religious point of view hate your liberal lifestyles with abortion on demand and kinky sex and pornography. "

You make them sound just like the Moral majority

Tony:

The prisoners at Gitmo are all held there as enemy combatants. Some are there with the additional designation "unlawful" enemy combatants – which means the government believes them guilty of some kind of war crime. If government dropped all war crimes allegations against the latter group, they would still be enemy combatants. An enemy combatant is a P.O.W. - whether or not he or she is also a war criminal. So, again, it is a fact that detainees held at Gitmo are held as P.O.W.s.

Those detainees are, in fact being visited regularly by the International Red Cross. See

http://www.icrc.org/Web/eng/siteeng0.nsf/iwpList4/C5667B446C9A4DF7C1256F5C00403967

In that case, they have access to a body to help them complain to the international community of any abuse they may have suffered or still suffer. So much for your theory that Bush and Co. are still keeping them in legal limbo.

BTW, George W. Bush and Co. are not my heroes. I would gladly see them impeached and removed from office, if not also put on trial for certain crimes. But that is another story for another time.

According to the U.S. Supreme Court in the Hamdi decision, those held at Guantanamo are entitled to the protections of the Geneva Conventions. The Bush administration has promised to abide by that decision, although there are some colorable arguments to make that the Geneva Conventions do not actually apply to these particular detainees (since the Conventions do not apply to all war zones).

So, yes, indeed, they are P.O.Ws, and they are attended by the International Red Cross and the protections of the Geneva Conventions. (Whether those are applied appropriately is another story altogether.) So, I did not get my legal basis wrong. You just can’t live with the facts.

But, I now see that you aren’t interested in talking about legality, you are interested in talking about justice. You know, every time you and I get into a discussion, the whole thing turns into a movable feast. The moment I get something tacked down, you always move the subject to a different matter just so you can be right about something. But I’ll play along this time.

You find it unfair that Mr. Ahmed Belbacha has been held for 5 years “for something that apparently did not do,” and then to “return [him] ... to a country [he] ... fled to avoid persecution . . .” It is apparent, however, that he was an enemy combatant. As such, the government could legitimately hold him for the duration of the war. We held German prisoners of war in the United States for longer than the duration of World War II (because of logistical difficulties in returning them while trying to facilitate the return of our own soldiers). The war against terrorists, and against the Taliban and Al Qaeda are not yet over. In which case, we could still legitimately hold him. However, we have chosen instead to release him because we no longer deem him to be a threat.

I look at Mr. Belbacha as an enemy combatant because that is how the government looks at him. Again, without going into the factual details (because we know how much that irritates you), there is a presumption in law that the government acts regularly. Thus his classification as an enemy combatant must stand unless other “evidence” is offered to rebut the determination resulting in his classification as an enemy combatant. But the time and opportunity to do any rebutting is already passed. His hearings are over and the full U.S. Supreme Court turned down his petition. Unless we want our government, and our legal system in particular, to devolved into total anarchy, we have to accord regularity and the presumption of correctness to those decisions.

You have said nothing to rebut any of the presumably-regularly-performed governmental functions. You suggest that being turned over by a bounty isn’t enough to get him to the status of enemy combatant, but you do not give all the facts and circumstances surrounding his capture and transfer to U.S. custody. There is evidence that he was involved in the Taliban in Afghanistan. There is a great likelihood that there was much more to his complicity than meets the eye, or which you are willing to admit. After all, the government doesn’t just pay out bounty money for anybody. If we did that, we would have soon emptied Pakistan with everyone turning everyone else in for bounties. It would be pointless to waste time and money just to pick on some poor innocent Algerian studying religion in Pakistan. So, it is fair to presume there was something else to distinguish Mr. Belbacha from the rest of the crowd and to connect him to our enemies.

If what you are suggesting is that we apply the presumption of innocence to the field of war, or that we apply the same rules in war that we use to restrain law enforcement’s treatment of citizens and residents domestically, then I suggest you are being unrealistic. If we applied those standards to war, we would never be able to take prisoners, much less keep them. Making the wrong choice in war doesn’t simply result in a “bad guy” getting away, like failing to arrest a suspect does here. It could lead to the release of a combatant who could return to assist his comrades in killing soldiers and marines. This is more than enough reason to dispense with such fine, balance rules in a theater of war.

As to whether we should return him to Algeria, that is another question. I am not thrilled by the government’s decision to send him back to Algeria because he might probably suffer that which he fears. However, repatriation is the normal remedy for a person once held as a P.O.W. If he wants to go elsewhere, then some other country had better step up to the plate and offer to take him. We have no choice but to send him home because we don’t want him, and we can’t force him on another country unwilling to take him.

Finally, your comments regarding Mr. Padilla are exactly what I am talking about when I refer to arguments with you as a movable feast. Mr. Padilla was not denied his right to habeas corpus. The U.S. Supreme Court did not hold that he wasn’t entitled to habeas corpus. They simply held that his attorney filed the habeas petition in the wrong place – because he was being held in South Carolina rather than in New York where the petition was filed. Another petition was filed on his behalf, at which time the government chose to transfer him to civilian custody – thereby making the habeas corpus petition moot because it only challenged his military custody. At that point, Mr. Padilla had more of his day in court than most people get in this country.

Nor does Mr. Padilla’s troubles with habeas corpus have anything to do with the presumption of innocence – contrary to your suggestion. Habeas corpus is mostly the process by which the legality of custody is challenged. The remedy is not always to release the prisoner even if the prisoner’s custody is found to be illegal. It could result simply in the modification of his custody to remedy whatever was “illegal” about it. In Mr. Padilla’s case, the remedy would never have been to set him free. He was looking for a civil court to resolve the matter – and he got that.

Mr. Padilla’s three month long trial is now winding down in Miami. At the close of the evidence, the judge will invariably instruct the jury that he is entitled to a presumption of innocence, and that the presumption must result in his acquittal if the government does not rebut it by proof beyond a reasonable doubt of all the elements of the crimes charged.

Mr. Padilla is again having his day in court, and the presumption of innocence is now at work for him. So, yes, let’s “ask” Mr. Padilla about the presumption of innocence – right after his trial is over.

Jerry White:

I'm sorry to disappoint you, Sir, but you are wrong about the presumption of innocence. It applies to more than American citizens. It applies to everyone that finds themselves unfortunate enough to be charged with a criminal offense in our country, regardless of whether they are a citizen, a legal resident or an illegal alien.

This is because the presumption of innocence is derived from the Due Process Clauses of the Fifth and Fourteenth Amendments. Those clauses specifically protect a "person" against arbitrary governmental action, as opposed to only citizens or legal residents. The U.S. Supreme Court has, indeed, stated on numerous occasions that the Fifth Amendment applies to everyone within the jurisdiction of the American Courts. Thus, even the most despised and unpopular person is entitled to that protection if he or she is charged with a crime.

Anonymous:

They are worse than the Moral Majority, assuming the Moral Majority is bad. I've never heard of anyone in the Moral Majority beating a woman in public because she didn't have her face covered. Nor have I ever heard of anyone in the Moral denying women the right to an education, or the right to testify without being considered a second class citizen; nor have I ever heard of the Moral Majority ever condoning "honor killings" for unproven indiscretions by women family members.

The list of difference can go on for a very long time. The Moral Majority is actually quite moral in comparison.

"I look at Mr. Belbacha as an enemy combatant because that is how the government looks at him."

I guess that's the difference between you and I, John. You still unquestionally believe everything this administration tells you after their history of repeated lies. I do not. I still think for myself and balance the information available from all sources.

"Making the wrong choice in war doesn’t simply result in a “bad guy” getting away, like failing to arrest a suspect does here. It could lead to the release of a combatant who could return to assist his comrades in killing soldiers and marines. This is more than enough reason to dispense with such fine, balance rules in a theater of war."

But when we enlarge the theater of war to the entire planet, then we have no rules for anyone. Do you know what theater of war "Illegal enemy combatant" and US citizen Jose Padilla was picked up in? O'Hare International Airport.

As to the Geneva Convention protections for detainees and Jose Padilla's Habeaus rights, both of these were intially denied by the Bush administration and later forced upon them by the courts. But just keep believing that they are acting appropriately in all cases John.

Tony:

Okay Tony, have it your way. Twist my words around to mean something I never intended. That is what you did when you quoted, out of context, my statement that:
"I look at Mr. Belbacha as an enemy combatant because that is how the government looks at him."

I’m not blindly following the government as you suggest. It’s just that, unlike you, I’m not willing to believe the worst every time. I am willing to give the government the ability to do things without being second-guessed without any evidence to doubt they are doing wrong. To do otherwise is anarchy. Are you an anarchist, Tony? You sure sound like one.

You sound like one because you have taken the flimsiest of hearsay regarding Mr. Belbacha’s status and turned it into an international human rights crime. As I’ve said before, you have given me nothing to go on to believe they did the wrong thing. That speaks volumes of your inability to see anything other than from an extremist viewpoint.

More importantly, you have still come up with nothing to upset the legal presumption of regularity and propriety. The system cannot reopen cases just on a whim. If everyone could reopen a case on evidence as flimsy as you have offered, then nothing would ever become final, the system would never make any progress, and those whose cases are much more deserving (based on an actual factual showing) would never get the justice they deserve – owing to a backlog of frivolous cases to be reheard.

So, please, go ahead and fool yourself into believing your still “think for yourself.” You are doing no such thing. You are simply replaying all the same shrill left wing shout-downs that have been played out before. I have, in the process of this dialogue, been force to root them out, one by one for the falsehoods that they really are. And then you change the subject – again.

Which brings us to your complaint about the rules of engagement in the “entire world.” This is a non-issue, a non-sequitur and, as usual, a move in position for the feast. We are not engaged in the entire world. Neither Mr. Belbacha nor Mr. Padilla were found out “in the entire world.” Mr. Belbacha was found and handed over to the United States near the border of Afghanistan and Pakistan. That is a concrete theater of war where we are involved.

As for Mr. Padilla, you place too much emphasis on where he was picked up, but make no mention of how he got there. Padilla was picked up at O'Hare International Airport all right. He was picked up the moment he returned from Pakistan - which is the first place after Pakistan where we could apprehend him. If he was an enemy combatant in Pakistan, he was still one when he landed in the United States - so don't give some much weight to where he was arrested.

As for the rest of Mr. Padilla’s plight (and funny, I thought this started somewhere with a discussion of Mr. Belbacha’s custody) I can't think of a time when the government hasn't tried to take shortcuts across the rights of American citizens. Billy boy Clinton, Jack Kennedy, L.B.J. and Jimmy Carter all had their gaffes when it came to the civil rights. That is why we have a court system. It is a check (You know – of “checks and balances” fame?) against arbitrary action by the executive branch. The fact that Mr. Padilla eventually won in the courts and forced the government to respect his rights – and the fact the government is now respecting his rights, shows that the system still works and that we do not yet live under a totalitarian regime.

So, no, I do not believe “that they are acting appropriately in all cases.” But neither do I believe they are nearly always wrong, like you do.